Thursday, April 8, 2010
Expert Or Ex Parte?: Court Of Appeals Of Minnesota Finds Party Input Not Required Before Rule 706(a) Expert Appointments
The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness’ duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness’ findings, if any; the witness’ deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness.
As the text of this Rule and the recent opinion of the Court of Appeals of Minnesota in Duckwall v. Duckwall, 2010 WL 1286851 (Minn.App. 2010), make clear, while the Rule allows for input from the parties regarding appointment of experts, it does not require it.
In Duckwall, a Minnesota district court entered an order denying Adam Duckwall's motion to modify restrictions on his parenting time. Before entering this order, the court appointed Dr. Scott Fischer as an expert under Minnesota Rule of Evidence 706(a) to conduct a psychosexual examination of Duckwall. Dr. Fischer and another evaluator concluded after that examination
that "[appellant] has difficulties identifying and honoring the personal boundaries for himself and others" and that "[appellant] may present a sexual risk for adolescent females." With regard to his daughter, the evaluators stated, "we believe [appellant] has not nor is presently abusing his daughter in any form or fashion," however, "[appellant] demonstrated a few poor boundaries, judgment, and decision making related to his own three-year-old daughter." The evaluators recommended that appellant seek counseling for a minimum of 18 months on a weekly basis from a mental health professional who understands prevention and relapse of boundary violations.
After the district court denied his motion, Duckwall appealed, claiming, inter alia, that the district judge's contact with Dr. Fischer was an improper ex parte communication with a nonparty and that "Minnesota Rule of Evidence 706(a) requires that the district court permit input from the parties as to the necessity of such an expert." The Court of Appeals of Minnesota disagreed, correctly concluding that "[a]lthough rule 706(a) allows for input from the parties, it does not require that the judge seek it, and allows the judge to appoint experts of its own selection."